Apple v Samsung Jury Foreman Denies Misconduct, Suggests Conspiracy

This article has been updated to identify a discrepancy between Mr. Hogan's recollection of the jury selection process and the court's transcript of that event.

The jury foreman in the California patent litigation between Apple and Samsung has denied Samsung’s allegations of misconduct, Businessweekreported Thursday. After its major defeat in August, Samsung filed a motion to vacate the jury’s verdict last week, citing jury misconduct aimed at foreman Velvin Hogan.

The Korean electronics giant argued that Mr. Hogan intentionally omitted key details from his past that would have otherwise disqualified him from serving on the jury. These details include a 1993 bankruptcy filing and subsequent lawsuit with his former employer Seagate Technology. Seagate loaned Mr. Hogan US$25,000 during his employment with the firm and sought to recover its loan after Mr. Hogan was forced to declare bankruptcy.

Samsung and Seagate now have a “substantial strategic relationship.” Samsung owns 9.6 percent of Seagate’s shares, the second-highest percentage of any other shareholder, and has the power to nominate a director to Seagate’s Board.

Samsung argues that Mr. Hogan’s past litigation with Seagate created a conflict of interest, preventing him from fairly deliberating the case. “Mr. Hogan’s failure to disclose the Seagate suit raises issues of bias that Samsung should have been allowed to explore,” the company’s motion stated. The motion further suggests that Mr. Hogan’s omission was not unintentional, and that he failed to answer the questions “truthfully” in order to “secure a seat on the jury.”

While Mr. Hogan’s post-verdict comments to the media portray an individual that was indeed excited to sit on the jury of a major technology lawsuit, Mr. Hogan argues that he didn’t reveal his past Seagate connection because he wasn’t asked about it.

According to Mr. Hogan, the court’s instructions for potential jurors requested disclosure of any litigation from the last 10 years. Mr. Hogan’s bankruptcy and lawsuit with Seagate occurred well outside that time frame.

Update [11:25 PM EDT]:TMO reader Oliver pointed our attention to the transcript of the voir dire process at which Mr. Hogan was present:

THE COURT: Okay. Welcome back. Please take a seat. We had a few more departures in your absence. Let’s continue with the questions. The next question is, have you or a family member or someone very close to you ever been involved in a lawsuit, either as a plaintiff, a defendant, or as a witness?

As revealed by the transcript, there was no mention of the 10 year limit on litigation that needed to be disclosed. Mr. Hogan goes on to describe a 2008 lawsuit with a former employee, but did not mention his litigation with Seagate.

“I answered every question the judge asked me” and Samsung “had every opportunity to question me,” Mr. Hogan said in an October 2 interview with Bloomberg. “Had I been asked an open-ended question with no time constraint, of course I would’ve disclosed that. I’m willing to go in front of the judge to tell her that I had no intention of being on this jury, let alone withholding anything that would’ve allowed me to be excused.”

Mr. Hogan further suggested that Samsung did indeed know about his past litigation with Seagate and may have allowed him to sit on the jury regardless, hoping to use this controversy as an avenue for overturning an unfavorable jury verdict. He told Bloomberg that he wondered if Samsung “let me in the jury just to have an excuse for a new trial if it didn’t go in their favor.”

Mr. Hogan’s theory may not be entirely outside the realm of possibility. Diane Doolittle, an attorney with the firm that represented Samsung in its litigation with Apple, is married to Michael Grady, the attorney for Seagate who filed the 1993 complaint against Mr. Hogan.

Samsung’s efforts to overturn the jury’s verdict are unlikely to succeed. While some might argue that Mr. Hogan should have voluntarily disclosed his relationship with Seagate, the fact remains that Mr. Hogan did not technically withhold information from the court, and that it was Samsung’s responsibility to either question him directly about the matter or otherwise object to his qualifications during the jury selection process. [Author's Note: If the transcript of the voir dire session, above, is accurate, then Mr. Hogan did technically withhold information from the court, potentially changing the outcome of Mr. Lemley's assessment, below].

“It is very hard to get a jury verdict thrown out for juror misconduct,” Mark Lemley, a Stanford Law School professor, told Bloomberg. “If he truthfully answered the questions he was asked, Samsung will have a hard time proving bias.”

While Apple and Samsung await the court’s ruling on the motion to overturn the jury’s verdict, the two companies are also preparing for a hearing in December, which, if the verdict stands, will determine which Samsung products will face permanent injunctions in the United States.

[Author’s Note: If the transcript of the voir dire session, above, is accurate, then Mr. Hogan did technically withhold information from the court, potentially changing the outcome of Mr. Lemley’s assessment, below].

It’s accurate, and it’s more than technical. Even if the Seagate connection is just a horrible cosmic coincidence, Sammy’s lawyers are going to get to grill this clown on when he realized that there was a connection, and why he didn’t inform the court. There is no way he became aware of the appeal documents and then thought, “well f—-me sideways, when did Samsung buy Seagate?”

This won’t be the item that gets a verdict overturned or gets a new trial. But it will open Hogan to serious scrutiny by the court and the lawyers. Hid public statements will taint the verdict. Judge Koh will walk the total judgement down to $300M or so, effectively creating a compulsory license on Apple’s mobile patents.

Jose3:24 PM EDT, Oct. 5th, 2012Guest

Ohh Boy… Samsung is questioning the loopholes in the Judiciary system and it won’t help them and they should be happy if it doesn’t sting back.